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Wednesday, 14 June 2017

Is there a communication to the public
within the meaning of Article 3(1) of the InfoSoc
Directive by the operator of a website [The Pirate Bay,
TPB], if no protected works are available on that website, but there
is a system therein by means of which metadata on protected works is indexed
and categorised for users, so that these can trace and upload and download the
protected works? Does Article 8(3) of the InfoSoc Directive allow the
issuing of an injunction against an ISP ordering it to block access for its
users to an indexing site like The Pirate Bay?

These were the important questions that the Dutch
Supreme Court (Hoge Raad der Nederlanden) had referred to the Court of
Justice of the European Union (CJEU) inStichting
Brein v Ziggo, C-610/15(also
known asThe Pirate Baycase).

The AG Opinion

In hisOpinionin February last[commentedhere, here,
and to some extenthere]Advocate General (AG)
Szpunar answered both questions in the affirmative.

With particular regard to the first question the AG, while holding the view
that the present case would be different from the (at the time) most immediate
'precedent'[formally,
there is no system of precedent at the CJEU level],
ieGS Media[Katpostshere],
also appeared to embrace a broader understanding of what amounts to an act of
communication to the public.

In particular, in line with the December 2016 Opinion of
AG Campos Sánchez-Bordona[here]inFilmspeler, C-527/15[subsequently confirmed by the CJEU:hereandhere], AG Szpunar
construed Article 3(1) of the InfoSoc Directive in a broader way than what, for
instance, both AG Wathelet and the CJEU had done inGS Media.

In fact - similarly to AG Campos Sánchez-Bordona inFilmspeler- AG Szpunar moved away from a
(strict) requirement of 'indispensable intervention' towards an idea of
communication to the public as 'facilitation'. Not only those whose
intervention to make copyright works available to the public is indispensable
could be regarded as making an act of communication the public, but also those
whose intervention merely facilitates the finding of such works.

From this 'relaxation' of the notion ofwhocan be regarded as making an act of
communication to the public, the AG reached the conclusion that TPB operators
would indeed facilitate the finding of copyright works unlawfully made
available by third parties. Their acts would therefore fall within the scope of
Article 3(1) of the InfoSoc Directive. From the point of view of a national
court, TPB operators would be thus primarily liable for copyright infringement.

[For
a more detailed discussion of the relationship betweenGS Media, and the AG Opinions
inFilmspelerandZiggoas regards the construction of the
right of communication to the public, see this longer contribution of
mine here]

The CJEU decision

This morning the CJEU held the making available and managing an online platform
for sharing copyright-protected works may constitute an infringement of
copyright. Even if the works in question are placed online by the users of
the online sharing platform, the operators of that platform play an essential
role in making those works available.

The
decision is not yet available on the Curia website, but according to thepress
release:

“In today’s
judgment, the Court holds that the making available and management of an online
sharing platform must be considered to be an act of communication for the
purposes of the directive.

The
Court first draws attention to its previous case-law from which it can be
inferred that, as a rule, any act by which a user, with full knowledge of the
relevant facts, provides its clients with access to protected works is liable
to constitute an ‘act of communication’ for the purposes of the directive.

In
the present case it is common ground that copyright-protected works are,
through ‘The Pirate Bay’, made available to the users of that platform in such
a way that they may access those works from wherever and whenever they
individually choose.

Whilst
it accepts that the works in question are placed online by the users, the Court
highlights the fact that the operators of the platform play an essential role
in making those works available. In that context, the Court notes that the
operators of the platform index the torrent files so that the works to which
those files refer can be easily located and downloaded by users. ‘The Pirate
Bay’ also offers — in addition to a search engine — categories based on the
type of the works, their genreor their
popularity. Furthermore, the operators delete obsolete or faulty torrent files
and actively filter some content.

The
Court also highlights that the protected works in question are in fact
communicated to a public.

Indeed,
a large number of Ziggo’s and XS4ALL’s subscribers have downloaded media files
using ‘The Pirate Bay’. It is also clear from the observations submitted to the
Court that the platform is used by a significant number of persons (reference
is made on the online sharing platform to several tens of millions of users).

Moreover,
the operators of ‘The Pirate Bay’ have been informed that their platform
provides access to copyright-protected works published without the
authorisation of the rightholders. In addition, the same operators expressly
display, on blogs and forums accessible on that platform, their intention of
making protected works available to users, and encourage the latter to make
copies of those works. In any event, it is clear from the Hoge Raad’s decision
that the operators of ‘The Pirate Bay’ cannot be unaware that this platform
provides access to works published without the consent oftherightholders.

Lastly,
the making available and management of an online sharing platform, such as ‘The
Pirate Bay’, is carried out with the purpose of obtaining a profit, it being
clear from the observations submitted to the Court that that platform generates
considerable advertising revenues.”

A
more detailed analysis will be provided when the text of the judgment becomes
available: stay tuned![UPDATE at 11:19: the text of the judgment is now available in English here]

2 comments:

"Lastly, the making available and management of an online sharing platform, such as ‘The Pirate Bay’, is carried out with the purpose of obtaining a profit, it being clear from the observations submitted to the Court that that platform generates considerable advertising revenue"

So remove the adverts and Pirate Bay is fine? What if Pirate Bay still has adverts but can prove that it runs at a loss (revenue does not necessarily result in profit)? What if Pirate Bay sets itself up as a non-profit? The profit criterion is absolutely absurd.

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